Anna Sathya Transport Corporation Ltd. v. Siddhik Estate, Rasheeda, R. Vankateshan and National Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH TUESDAY, THE 20TH DAY OF SEPTEMBER 2016/29TH BHADRA, 1938 MACA.No. 209 of 2007 ( ) ------------------------AGAINST THE AWARD IN O.P(M.V)NO.2142/2001 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR DATED 29-07-2006 APPELLANT/2ND RESPONDENT: ---------------------------------- THE MANAGING DIRECTOR, ANNAI SATHYA TRANSPORT CORPORATION LTD., DHARMAPURI - 636 705, PRESENTLY RENAMED AS TNSTC (SALEM) LTD., 12, RAMAKRISHNA ROAD, SALEM - 636 007. BY ADVS.SRI.P.RAVINDRAN (SR.) SRI.HARIKRISHNAN RAVINDRAN SRI.V.G.SANKARAN RESPONDENTS/PETITIONERS & RESPONDENTS 1 & 3: --------------------------------------------------------- 1. A.H.SIDDHIK, S/O.HAMEED, - `SIDDHIK ESTATE', EDATHALA, ALUVA, ERNAKULAM DISTRICT, KERALA (F/O.DECEASED SAIRA). 2. RASHEEDA, W/O.SIDDHIK, `SIDDHIK ESTATE', EDATHALA, ALUVA,, ERNAKULAM DISTRICT, KERALA. (M/O.DECEASED SAIRA). 3. R.VANKATESHAN, S/O.RAMASWAMY, 28 A, ERUMAPALAYAM, MAIN ROAD, KALARAMPATTY, SALEM-15, TAMILNADU. 4. NATIONAL INSURANCE CO.LTD., PALARIVATTOM, ERNAKULAM DISTRICT. R1 & R2 ADV.WILSON URMESE R3 BY ADV.SMT.RAJI VINCENT R4 BY ADV. SMT.SARAH SALVY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20-09-2016, ALONG WITH MACA. 522 OF 2007 & CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: # **C.T. RAVIKUMAR & K. P. JYOTHINDRANATH, JJ.** **==================== M.A.C.A. Nos.209, 499, 505, 514, 522, & 544 of 2007** **=================== Dated this the 20[th] day of September, 2016** ## **J U D G M E N T** ## **RAVIKUMAR, J.** The captioned appeals arise from the common judgment and award passed by the Motor Accidents Claims Tribunal, Perumbavoor. M.A.C.A. No.209 of 2007 is filed against the judgment and award in O.P(MV) No.2142 of 2001; M.A.C.A. No.499 of 2007 is filed against the judgment and award in O.P(MV) No.2143 of 2001; M.A.C.A. No.505 of 2007 is filed against the judgment and award in O.P(MV) No.2144 of 2001; M.A.C.A. No.514 of 2007 is filed against the judgment and award in O.P(MV) No.2251 of 2001; M.A.C.A. No.522 of 2007 is filed against the judgment and award in O.P(MV) No.2238 of 2001 and M.A.C.A.Nos.209, 499, 505, 514, 522 & 544 of 2007 2 M.A.C.A. No.544 of 2007 is filed against the judgment and award in O.P(MV) No.2250 of 2001. All the appeals have been filed by Anna Sathya Transport Corporation Limited, the 2[nd] respondent before the Tribunal. O.P(MV) No.2142 of 2001 from which M.A.C.A. No.209 of 2007 arose was filed seeking compensation for the death of one Saira. O.P(MV) No.2144 of 2001 from which M.A.C.A. No.505 of 2007 arose was filed seeking compensation for the damages caused to the Topyota Corollo car bearing Reg. No.KL-7/A-6323 in which the deceased and the injured claimants were travelling at the time of the accident. The other claim petitions from which the other appeals arose were filed seeking compensation for the injuries sustained by the parents and siblings of the aforesaid Saira. 2. The Tribunal passed award in favour of the claimants in all the claim petitions as per the M.A.C.A.Nos.209, 499, 505, 514, 522 & 544 of 2007 3 aforesaid common judgment. Evidently, the Tribunal arrived at a finding that the accident in question occurred due to the negligence on the part of the driver of the bus bearing Reg.No.TN-29/N-0517. The bus belonged to Anna Sathya Transport Corporation Ltd., Dharmapuri and the appellant is the registered owner of the said vehicle. In fact, the aforesaid bus belongs to the State of Tamil Nadu. Since all these appeals arise from the common judgment and award and the Tribunal has conducted a joint enquiry in respect of all the claim petitions which culminated in the aforesaid common award, we heard the appeals jointly and they are being disposed of by this common judgment. 3. We have heard learned counsel appearing for the appellant and the learned counsel appearing for the respondents in all these appeals. 4. The fate of the appeals would depend on the M.A.C.A.Nos.209, 499, 505, 514, 522 & 544 of 2007 4 decision on a factual question as to whether the accident occurred due to the negligence of the driver of the bus as held by the Tribunal. If the answer is in the affirmative, the captioned appeals have to fail. For considering the aforesaid aspects, it is inevitable to narrate succinctly the facts that led to the filing of the above mentioned claim petitions. 5. On 23.12.2000, the deceased Saira, the victim in O.P(MV) No.2142 of 2001, was travelling as a passenger in Toyotta Coroloa Car bearing Reg.No.KL-7/A-6323 driven by her brother, Rosemon, claimant in O.P(MV) No.2251 of 2001. Her parents and sister were their co-passengers. When their car reached near Onnalwad Cheena Packing Company at Raikotta-Hosur road at about 3.45 p.m., the alleged offending vehicle which is a bus bearing Reg.No.TN29/N-0517 driven by the 1[st] respondent (in all the M.A.C.A.Nos.209, 499, 505, 514, 522 & 544 of 2007 5 claim petitions) dashed against the car. Saira died on the spot and others who sustained injuries were initially taken to KR Hospital, Bangaluru and thereafter they were shifted for further treatment to Medical Centre, Ernakulam. It is in the said circumstances that O.P(MV) No.2142 of 2001 was filed seeking compensation for the death of Saira, by her parents. Father of the deceased Shri. Siddhik who was the registered owner of the Toyota Car filed O.P. No.2144 of 2001 seeking compensation for the damages caused to the Car. Other claim petitions were filed by the injured-passengers in the car including Siddhik, seeking compensation for the injuries sustained by them in the accident. 6. On the side of the appellant Exts.B1 to B3 were got marked besides getting examining RWs1 to 3. On the side of the claimants-party respondents Ext.A1 to A26 were got marked besides getting M.A.C.A.Nos.209, 499, 505, 514, 522 & 544 of 2007 6 examined one P.J. Varghese as PW1. The Tribunal passed the impugned judgment/award after appreciating the evidence on record and the rival contentions. As noticed hereinbefore, the Tribunal found that the accident occurred solely due to the negligence on the part of the driver of the bus. The learned counsel for the appellant contends that the Tribunal went wrong in holding that the accident occurred solely due to the negligence of the driver of the bus and at any rate, the Tribunal ought to have found that the claimant in O.P(MV) No.2251 of 2001, driver of the car, also had contributed to the accident. Per contra, the learned counsel for the claimants-respondents would contend that the Tribunal has correctly arrived at the conclusion that the accident in question occurred exclusively due to the negligence on the part of the driver of the bus. Thus, the question is whether the finding M.A.C.A.Nos.209, 499, 505, 514, 522 & 544 of 2007 7 of the Tribunal that the accident occurred due to the negligence of the driver of the bus, invites interference. If it is found that it is perverse finding and that the accident occurred due to composite negligence of drivers of both the vehicles then it may have to be apportioned amongst them. 7. Contention of the learned counsel for the appellant is that the Tribunal while holding that the accident occurred exclusively due to the negligence on the part of the driver of the bus, had not given due consideration to the documents marked on the side of the appellant for the purpose of substantiating the contention that the accident occurred due to the negligence of the driver of the car, viz., the claimant in O.P(MV) No.2251 of 2001. Exhibits B1 to B3 are the documents produced on the side of the appellant. Exhibit B1 is the series of photographs together with its negatives, of the M.A.C.A.Nos.209, 499, 505, 514, 522 & 544 of 2007 8 vehicles involved in the accident, taken from the place of occurrence. Exhibit B2 is the accident location sketch prepared at the instance of the appellant. Exhibit B3 is the letter issued by the Additional Public Prosecutor of the Special Judge's Court, Hosur. Contention of the learned counsel for the appellant is that the Tribunal ought to have been given due weight to the evidence adduced by the appellant, both oral and documentary. The driver of the bus was examined as RW3 and RWs1 and 2 were the Branch Managers of the appellantCorporation. Essentially, the contention is that if the aforesaid oral and documentary evidences were properly appreciated by the Tribunal it would not have arrived at a finding of negligence exclusively on the part of the 1[st] respondent, the driver of the bus relying on the evidence adduced by the claimants and at the same time, would have M.A.C.A.Nos.209, 499, 505, 514, 522 & 544 of 2007 9 constrained to hold otherwise or at least, to hold that the cause of the accident was composite negligence of the drivers of the vehicles involved in the accident. 8. We will firstly consider what are the evidences which were taken into consideration by the Tribunal for arriving at the conclusion that the accident occurred solely due to the negligence on the part of the driver of the bus. Obviously, the Tribunal relied on Exts.A1, A2 and A4 for arriving at such a conclusion. Exhibit A1 is the certified copy of the FIR in Crime No.185 of 2000 of Traffic Police Station, Hosur, registered in connection with the accident in question. It would reveal that the 1[st] respondent in the claim petitions before the Tribunal, who was the driver of the bus involved in the accident was the accused therein. Exhibit A2 would reveal that after conducting investigation in the crime registered in connection with the accident M.A.C.A.Nos.209, 499, 505, 514, 522 & 544 of 2007 10 a charge sheet was filed against the 1[st] respondent for having committed offences under Sections 279, 339 and 304A of the Indian Penal Code. Exhibit A3 is the observation mahazar prepared in the aforesaid crime. Learned counsel for the appellant contended that the fact that the 1[st] respondent in the claim petitions, driver of the bus was arrayed as an accused in the aforesaid crime became inconsequential in the light of Exhibit B3 whereby and whereunder the court of Judicial Magistrate, Hosur closed the case on 15.10.2004 under Section 468 of the Code of Criminal Procedure. The learned counsel would further submit that it would reveal that the 1[st] respondent was not made to stand the trial as no cognizance was taken on Ext.A2. 9. Learned counsel appearing for the claimants on the other hand contended that in the light of the Division Bench decisions of this Court in **New India** M.A.C.A.Nos.209, 499, 505, 514, 522 & 544 of 2007 11 **Assurance Co. Ltd. v. Pazhaniammal** (2011[3] KLT 648) and **Sheji v. Muhammedali Shehabudeen and Another** (2016[2] KHC 410), the Tribunal cannot be found fault with in finding that Ext.A2 charge sheet could be _prima facie_ taken as sufficient evidence of negligence. It is the further submission that when police charge sheet is _prima facie_ evidence for the purpose of a claim under Section 166 of the Motor Vehicles Act, it is for the respondents before the Tribunal, i.e., the appellant and the driver of the bus to rebut the same and to establish that the accident had taken place not due to the negligence on the part of the driver of the bus. The claimants would further contend that no evidence whatsoever was adduced by the appellant to outweigh the evidence adduced by them and to establish that the accident occurred solely due to the negligence of the driver of the bus. In short, their contention M.A.C.A.Nos.209, 499, 505, 514, 522 & 544 of 2007 12 in the light of the aforesaid circumstances is that the finding of the Tribunal is nothing but an irresistible and inevitable conclusion that could be arrived at on the basis of the evidence on record and therefore, it cannot be said to be an erroneous appreciation of the evidence. 10. The question whether a police charge sheet could be treated as _prima facie_ evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act is no more _res integra_ . This Court in **Pazhaniammal's case** (supra) held that as a general rule it can safely be accepted that production of the police charge sheet is _prima facie_ sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. A system cannot feed itself on a regular diet of distrust of the police. _Prima facie_ , charge sheet filed by a police officer M.A.C.A.Nos.209, 499, 505, 514, 522 & 544 of 2007 13 after due investigation can be accepted as evidence of negligence against the indictee. If any one of the parties does not accept such charge sheet, the burden must be on such party to adduce oral evidence, it was further held therein. Virtually, this position was reiterated by a later Division Bench in the decision in **Sheji's case** (supra). We also find no reason to disagree with the said view taken in the earlier Division Bench decisions that a charge sheet can be treated as a _prima facie_ sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. When it can be taken as _prima facie_ evidence, for the aforesaid purpose, the further question to be looked into in this case is whether the appellant had adduced any evidence to rebut the position obtained from the same. The learned counsel for the appellant contended that M.A.C.A.Nos.209, 499, 505, 514, 522 & 544 of 2007 14 oral evidence of the 1[st] respondent in the claim petitions tendered on as RW3 ought to have been given due weight by the Tribunal as he was the person who drove the bus in question at the time of accident. Obviously, the evidence of RWs1 and 2 would not fetch any help for arriving at a contra conclusion to the one arrived at by the Tribunal. Therefore, the question is whether the evidence of RW3 and Exts.B1 and B2 are sufficient to outweigh the evidence adduced by the claimants to establish that the accident in question occurred due to the negligence on the part of the driver of the bus. How can the interested testimony of RW3, the accused in Crime No.185 of 2000 of Hosur Traffic Police Station who drove the bus involved in the accident be relied on to discredit Ext.A2. We will also have to consider the question whether Exts.B1 and B2 are sufficient to outweigh the evidence adduced by M.A.C.A.Nos.209, 499, 505, 514, 522 & 544 of 2007 15 the claimants to prove negligence on the part of the driver of the bus. Exhibit B1 is, in fact, a series of photographs and negatives of the vehicles involved in the accident taken from the place of occurrence. 11. We are at a loss to understand how the photographs and negatives could or would help the court in arriving at a conclusion regarding the cause of the accident in question. Needless to say that the photographs in question were taken after the accident. It is to be noted that the collision was between two vehicles, one a heavy vehicle and the other a light motor vehicle. The evidence on record itself would reveal that owing to the impact of the collision the car had capsized. In such circumstances, a photograph taken after the incident would not and could not give any crucial material or evidence to arrive at a conclusion regarding the M.A.C.A.Nos.209, 499, 505, 514, 522 & 544 of 2007 16 negligent aspect as the position of the vehicles after such collision would not and could not be the same as at the time of the accident and therefore, they cannot reveal the actual place of occurrence. In this case, as noticed hereinbefore, after registering a crime investigation was conducted by the Investigating Officer and Ext.A2 charge sheet was filed against the 1[st] respondent, the driver of the bus. Evidently, it was filed on 20.08.2002. True that, Ext.B3 would reveal that the case was closed on 15.10.2004 under Section 468 Cr.P.C. taking into account the bar for taking cognizance on the question of limitation. But, at the same time, it is a fact that the charge was filed well within time and cognizance was not taken thereon within the time specified under Section 468 Cr.P.C. Merely because in such circumstances, the 2[nd] respondent could not be made to stand trial cannot be a reason M.A.C.A.Nos.209, 499, 505, 514, 522 & 544 of 2007 17 for holding that Ext.A2 should be ignored in toto or that such a situation would denude the validity of Ext.A2 in terms of the decision of this Court in **Pazhaniammal's** case (supra), for the purpose of looking into the question of negligence in a claim under Section 166 of the Motor Vehicles Act. The normal procedure and natural and logical conclusion based on Ext.A2 was made impossible only due to a technical reason. We do not think it appropriate or feasible to look into the correctness or legality of the position obtained from Ext.B3. As noticed hereinbefore, in Ext.A2, after the investigation the 1[st] respondent, the driver of the bus was arraigned as the accused for commission of offences under Sections 279, 339 and 304-A, I.P.C. We are also of the view that the finding of the Tribunal that the accident in question occurred solely due to the negligence of the 1st respondent can be sustained in M.A.C.A.Nos.209, 499, 505, 514, 522 & 544 of 2007 18 the light of the position obtained from Ext.A4 as well. Ext.A4 is the mahazar prepared immediately after the accident, in Crime No.185 of 2000 of Traffic Police Station, Hosur. The sketch and the mahazar would show that the place of accident was on the western side of the centre point of the road. In this context, it is to be noted that indisputably, the car in question was proceeding from south to north and the bus was proceeding from north to south. In such circumstances, the correct and proper side of the car was the western side of the road and that of the bus was the eastern side. In the mahazar and sketch the place of occurrence is shown towards the western side of the centre point. The learned counsel for the appellant submitted that in contrast to the position thus obtained Ext.B2 would reveal that the place of occurrence was on the eastern side from the middle point. It is M.A.C.A.Nos.209, 499, 505, 514, 522 & 544 of 2007 19 only a location sketch prepared at the instance of the appellant. There can be no doubt to the position that when a mahazar and sketch prepared by the police in a crime registered in connection with the accident in question are available Ext.B2 sketch described as Accident Location Sketch prepared at the instance of the owner of the bus involved in the accident cannot supersede the mahazar and sketch prepared by the Police. More so, Ext.B2 cannot have any legal sanctity especially taking into account the fact that the person who prepared the same was not examined before the Tribunal and under what circumstances and under what authority he prepared the same are also not forthcoming. Therefore, we have no hesitation to hold that Ext.A4 observation mahazar and the sketch appended to it alone could be looked into for the aforesaid purpose and that the M.A.C.A.Nos.209, 499, 505, 514, 522 & 544 of 2007 20 Tribunal had rightly declined to accept and act upon Ext.B2. Thus, what is available on the side of the appellant as against the above mentioned evidence on the side of the claimants is only the assertion of RW3. As noticed hereinbefore, RW3 is none other than the person who drove the offending vehicle and he was the accused in the Crime registered in connection with the accident in question. As noticed hereinbefore, the question whether the accident occurred due to the rash and negligent driving of the bus by the first respondent, was purely factual issue. The Tribunal arrived at a finding relying on the evidence on record. In such circumstances, we will have to keep in mind the settled position that a finding of fact invites interference by an appellate court only if the finding is utterly perverse or if it is against the weight of the evidence on record. In this case, on M.A.C.A.Nos.209, 499, 505, 514, 522 & 544 of 2007 21 considering the evidence on record and after going the impugned judgment and considering the manner in which the Tribunal appreciated the evidence we are of the view that it cannot be said that the appreciation by the Tribunal is utterly perverse or it cannot be said that the finding arrived at by the Tribunal is against the weight of evidence. None of the respondents before the Tribunal disputed the accident. The fact that the bus involved in the accident belonged to the appellant is also not in dispute. In such circumstances, the appellant cannot avoid the vicarious liability to compensate the claimants as the accident occurred due to the negligence of the first respondent who was its employee. The judgment and awards are passed based on such conclusions and findings. In such circumstances, no appellate interference is called M.A.C.A.Nos.209, 499, 505, 514, 522 & 544 of 2007 22 for in this case. The long and short of the discussion is that these appeals have to fail. In the result, these appeals are dismissed. There will be no order as to costs. Sd/- **C.T.RAVIKUMAR** **Judge** sd/- **K.P.JYOTHINDRANATH Judge** VSV/TKS